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11
Court of Criminal Appeal 28 November 2014

Yousef Jidah v R

[2014] NSWCCA 270

Also reported as (2014) 246 A Crim R 368
Drugs
CRIMINAL APPEAL CONVICTION APPEAL SENTENCE APPEAL

Citation: Yousef Jidah v R [2014] NSWCCA 270
Court: NSW Court of Criminal Appeal
Date: 28 November 2014
Judges: Bathurst CJ; Fullerton J; Davies J

Background

The appellant was tried jointly with several co-offenders on a range of charges arising from an alleged drug operation involving pseudoephedrine. Following a jury trial in the District Court, he was convicted on two counts: supplying a prohibited drug (pseudoephedrine) in a quantity not less than the large commercial quantity, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW); and attempting to possess a precursor (also pseudoephedrine) intended for use in the manufacture of a prohibited drug, contrary to s 24A(1) of the same Act. Both charges related to the same substance and the same period.

The supply count attracted a sentence of eight years and nine months non-parole period with an additional term of four years and three months. The precursor possession count received 15 months, served concurrently. The appellant challenged both his conviction and his sentence on the supply count.

Several co-offenders, including the appellant's brother Ibrahim Jidah, were sentenced in related proceedings. Those sentences were subsequently adjusted on appeal, which in turn affected the parity analysis for this appellant.

  • Whether the elements of the supply offence (Count 8) were entirely contained within the elements of the precursor possession offence (Count 9), such that the conviction on both counts constituted a miscarriage of justice
  • Whether the two offences could be maintained simultaneously where the substance was the same but characterised differently (as a prohibited drug and as a precursor)
  • Whether the sentencing judge erred in assessing the objective seriousness of the supply offence by failing to treat the possession offence as necessarily subsumed within it
  • Whether the sentencing judge made impermissible findings about the appellant's knowledge of the scale of the drug enterprise
  • Whether the sentence reflected Muldrock error (incorrect application of the standard non-parole period as a primary determinant rather than a legislative guidepost)
  • Whether parity with co-offenders required resentencing

Decision

Conviction appeal dismissed. The Court rejected the argument that the elements of the supply offence were wholly contained within the precursor possession offence. A plea in bar depends on what elements must be proved, not on what evidence is likely to be called. The supply count contained an additional element absent from the possession count: the requirement that the quantity be not less than the commercial quantity. That distinction alone prevented the elements of one count from being entirely subsumed by the other.

The Court also rejected the submission that pseudoephedrine could not simultaneously be characterised as both a prohibited drug and a precursor. It was theoretically possible for a person to know that a substance is a precursor without knowing it is also a prohibited drug. The two characterisations coexist under the legislation. The Court further found that the laying of both charges was not an abuse of process: the charges were different in important respects and together reflected the full criminality of the appellant's conduct. The Crown's stated reason for the dual charges, namely to cater for a possible "Carey-type" defence, did not render the process impermissible.

Leave to appeal against sentence granted; sentence reduced. The Court accepted the Crown's concession that the original sentence was affected by Muldrock error, where the standard non-parole period had been treated as a fixed benchmark rather than a legislative guidepost. Parity also required intervention: co-offenders more senior in the drug enterprise had been resentenced on appeal, and the appellant's sentence needed adjustment to properly reflect his comparatively lesser role. The appellant's brother had recruited him to act as driver. Updated material before the Court on resentencing showed the appellant had performed well in custody, completing a tertiary preparation program with outstanding results.

The Court resentenced the appellant to a total term of 10 years imprisonment, comprising a non-parole period of 6 years and an additional term of 4 years. The finding of special circumstances originally made by the sentencing judge was preserved.

Orders Made

  • Appeal against conviction dismissed.
  • Leave to appeal against sentence granted.
  • The sentence imposed in the District Court on 23 September 2011 on Count 8 is quashed.
  • In lieu thereof, a sentence of 10 years imprisonment imposed, commencing 11 May 2010 and expiring 10 May 2020, comprising a non-parole period of 6 years and an additional term of 4 years.
  • The appellant to be eligible for release on parole upon expiration of the non-parole period on 10 May 2016.

Key Takeaways

  • A plea in bar requires that the elements of one offence be entirely subsumed within another; the court confirmed that this analysis turns on what elements must be proved, not on the evidence that might be called at trial.
  • Under the Drug Misuse and Trafficking Act 1985 (NSW), the commercial quantity element of a supply offence can be sufficient to distinguish it from a precursor possession offence, even where both charges concern the same substance.
  • The same substance may lawfully be characterised as both a prohibited drug and a precursor simultaneously; the Court of Criminal Appeal held that a person could theoretically know a substance is a precursor without knowing it is also a prohibited drug.
  • Muldrock error, where a standard non-parole period is treated as a primary determinant rather than a guidepost, remained a recognised basis for resentencing during this period, including where the Crown conceded the error.
  • Parity considerations can require resentencing of a co-offender even where that offender's own sentence contained no identified error, where the sentences of more senior co-offenders have been reduced on appeal.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 3, 24A, 25, 33, 33AB and Sch 1
- Drug Misuse and Trafficking Regulation 2011 (NSW), Sch 1
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10A

Cases:
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
- The Queen v De Simoni [1981] HCA 31; (1981) 147 CLR 383
- R v Carey (1990) 20 NSWLR 292
- Nahlous v The Queen [2010] NSWCCA 58; (2010) 77 NSWLR 463
- Lachlan Wilson v R [2014] NSWCCA 266
- Ibrahim Jidah v R [2014] NSWCCA 269
- DS v R [2014] NSWCCA 267
- Standen v Director of Public Prosecutions (Cth) [2011] NSWCCA 187; (2011) 218 A Crim R 28
- Hinchcliffe v R [2010] NSWCCA 306
- Blay v The Queen [2006] WASCA 248; (2006) 205 FLR 414
- R v Langdon and Langdon [2004] VSCA 205; (2004) 11 VR 18
- Environment Protection Authority v Australian Iron & Steel Pty Ltd (1992) 28 NSWLR 502